Clarke v. US
| Decision Date | 13 December 1988 |
| Docket Number | Civ. A. No. 88-3190 (RCL). |
| Citation | 705 F. Supp. 605 |
| Parties | David A. CLARKE, H.R. Crawford, Charlene Drew Jarvis, Betty Ann Kane, Hilda H.M. Mason, James E. Nathanson, John Ray, Wilhelmina J. Rolark, Carol Schwartz, Frank Smith, Jr., Harry Thomas, Sr., John A. Wilson, and Nadine P. Winter, Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Columbia |
I. Michael Greenberger (argued), James R. Bird, Richard M. Wyner, Mark S. Raffman, Shea & Gardner, Washington, D.C., and Gregory E. Mize, Gen. Counsel, Council of the District of Columbia, with him on the briefs, for plaintiffs.
Curtis E. Hall, Asst. U.S. Atty. (argued), Jay B. Stephens, U.S. Atty. and John D. Bates, Asst. U.S. Atty., with him on the briefs, for defendant.
John Vanderstar, Alan M. Kirschenbaum, Gregory J. Glover, Stanlake M. Samkange, Covington & Burling, Washington, D.C., Nan D. Hunter, William B. Rubenstein, American Civil Liberties Union, New York City, Arthur B. Spitzer, Elizabeth Symonds, American Civil Liberties Fund of the Nat. Capital Area, for amicus curiae American Civil Liberties Union and American Civil Liberties Union of the Nat. Capital Area.
Joseph E. Broadus, Arlington, Va., for amicus curiae Coalition for Religious Freedom.
Michael Stokes Paulsen, Kimberle Wood Colby, Center for Law and Religious Freedom, Merrifield, Va., for amicus curiae Nat. Ass'n of Evangelicals, Public Affairs Committee of the Southern Baptist Convention, American Ass'n of Christian Schools, Ass'n of Christian Schools Intern. and Christian Legal Soc.
Austin F. Frum, Paul J. Kiernan, Dunnells, Duvall, Bennett & Porter, Washington, D.C., and William B. Duffy, Jr., Greenman, Grossman & Duffy, Boston, Mass., for amicus curiae Unitarian Universalist Ass'n.
Dennis M. Desmond, Washington, D.C., for amicus curiae All Souls Church, Unitarian, Washington, D.C.
Plaintiffs in this action challenge the constitutionality of the "Nation's Capital Religious Liberty and Academic Freedom Act," also known as the "Armstrong Amendment," which was enacted October 1, 1988 by Congress as part of the 1989 D.C. Appropriations Act. The Armstrong Amendment reads as follows:
Pub.L. No. 100-462 (Oct. 1, 1988); text printed at 134 Cong.Rec. S9108 (daily ed. July 8, 1988).
Congress enacted the Armstrong Amendment in response to the decision of the D.C. Court of Appeals in Gay Rights Coalition v. Georgetown University, 536 A.2d 1 (D.C.1987) (en banc). In that case, a majority of the court construed the D.C. Human Rights Act to require that Georgetown University provide facilities and services to gay student groups equivalent to those provided to other student groups, although the court held that Georgetown need not officially recognize such groups. The court found that requiring such services did not violate the free exercise rights of Georgetown University, which is affiliated with the Roman Catholic religion.
Plaintiffs are all thirteen members of the D.C. City Council, suing both in their capacities as individual Council members and as municipal taxpayers. Plaintiffs raise five separate challenges to the constitutionality of the Act, three of which concern the means by which Congress has sought to cause the Council to adopt an amendment to the D.C. Human Rights Act, and two of which challenge the substantive constitutionality of the language of the amendment. The plaintiffs first assert that, by conditioning funding for all city operations on the Council's action, the Act coerces political speech by the Council members in violation of their first amendment rights. Plaintiffs further assert that this condition violates Congress' spending power and effects an unconstitutional taking of District funds. Plaintiffs also challenge the Act on its face, alleging that it discriminates among religions in violation of the establishment clause of the first amendment, and that it violates the speech and associational rights of District residents who express particular views concerning homosexuality. The United States has challenged the standing of the plaintiffs to raise these claims and has opposed each claim on the merits.
Plaintiffs first moved for a preliminary injunction to prevent the law from taking effect on January 1, 1989. The United States responded with a motion to dismiss or, in the alternative, for summary judgment and plaintiffs countered with a cross-motion for summary judgment. The issues have been fully briefed and oral argument has been held. For the reasons stated below, the Court holds that the Act is an impermissible burden on the freedom of speech of the Council members. Because of this holding, the court need not address the four remaining claims presented by the plaintiffs, or the plaintiffs' standing to raise those claims.1
Defendant asserts that plaintiffs lack standing to raise their claim that the Armstrong Amendment violates their first amendment rights because plaintiffs in fact have no such first amendment rights. Although this argument is somewhat conclusory, and the court rejects it because the court finds that plaintiffs do have such rights,2 the court notes that the law accords standing to legislators who have alleged an injury to their constitutional rights or duties. Thus, in Moore v. U.S. House of Representatives, 733 F.2d 946 (D.C.Cir.1984), cert. denied, 469 U.S. 1106, 105 S.Ct. 779, 83 L.Ed.2d 775 (1985), the court reviewed legislator standing and concluded:
From Kennedy v. Sampson to Harrington v. Bush and American Federation of Government v. Pierce, we have held that unconstitutional deprivations of a legislator's constitutional duties or rights, such as the nullification of a legislator's vote by illegal Executive action, may give rise to standing if the injuries are specific and discernible.
Id. at 952, citing Kennedy, 511 F.2d 430 (D.C.Cir.1974); Harrington, 553 F.2d 190 (D.C.Cir.1977); Pierce, 697 F.2d 303 (D.C. Cir.1982).
In Moore, House members alleged that the illegal origination of revenue-raising legislation in the Senate deprived them of their rights to debate and vote on the legislation. The court found that the claimed injury was sufficiently specific and concrete to satisfy requirements of standing. Likewise, in the instant case, the Council members have alleged a specific injury in the deprivation by Congress of their first amendment right to vote in accordance with their own views of the constitution and the public interest.3
Alternatively, the court finds plaintiffs have oath of office standing, under the principle recognized by the Supreme Court in Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968).4 In Allen, the Court found that legislators who had taken an oath to uphold the Constitution had standing to challenge the constitutionality of a law when they risked a concrete injury by refusing to enforce the law. In that case, plaintiffs faced the choice of violating their oaths by enforcing a law which they believed to be unconstitutional or risking expulsion from their jobs. Plaintiffs here are similarly placed. Because Congress has conditioned all District funds on the Council's vote, the Council members must either vote in a way which they believe violates their oaths, or face almost certain loss of their salaries and staffs as well as water, police and fire protection.
In determining whether the Armstrong Amendment violates plaintiffs' first amendment rights the court must make four separate findings. First, the court must find that the activity that is allegedly burdened, i.e. the process of proposing and voting to adopt the amendment, is "speech" within the meaning of the first amendment. Second, the court must find that the condition placed by Congress upon the "speech" constitutes a burden on the speech. Third, the court must determine whether the United States has a legitimate interest in restricting plaintiffs' speech; and fourth, the court must determine whether the United States' interest in restricting speech outweighs the value of the speech restricted. See, e.g., First Nat'l. Bank of Boston v. Bellotti, 435 U.S. 765, 776-77, 786-95, 98 S.Ct. 1407, 1421-26, 55 L.Ed.2d 707 (1978), rehearing denied, 438 U.S. 907, 98 S.Ct. 3126, 57 L.Ed.2d 1150 (1978).
Assuming for the moment that plaintiffs' voting is "speech" within the protection of the first amendment, the court finds that the burden and government interest determinations are clear. Congress has conditioned all funding for the District, including that which pays the plaintiffs' own salaries, on the adoption of a law, the exact language of which Congress has prescribed. The United States suggests that this condition does no more than force the Council members to "hold their noses" and adopt the law. First amendment protection, however,...
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